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January 2012 Archives

Advantages of a Separation Agreement

People who are having trouble in their marriages and feel they want to get divorced are often still ambivalent about it. They realize they can't go on with the relationship as it currently stands, but believe there may still be a chance of saving it. An interim legal measure that can permit a couple to explore whether their marriage can work, yet acknowledges the possibility of eventual divorce, is to have a separation agreement prepared.

The "John Doe" Eviction

Litigating with your landlord, and ending up on the blacklist of names sold to tenant screening agencies, poses a serious danger to your future ability to rent affordably. In some instances, it may be possible to negotiate with the landlord to bring a proceeding against you in the name of John or Jane Doe, so that your name doesn't end up on the blacklist. It is likely to take the help of an experienced Tenants' attorney to get the landlord to agree to this, but if it can be done, staying off the blacklist is worth the cost of legal fees. For example, if you believe can reach a settlement before any court action begins, your attorney may be able to convince the landlord that he or she has little to lose by agreeing to this. This is an unusual approach that landlords don't often go along with, but when you're attempting to save your shelter and protect your future rent-worthiness, you try whatever legal approaches you can. 

Saving Your Apartment at The Last Minute

Up until the time a Warrant of Eviction is issued when you're sued in a nonpayment suit, you have a right for a judge to halt your eviction by depositing the back rent with the court, along with interest, penalties and the costs of the proceeding. If the Warrant of Eviction has already been issued, and even if you've already received a Marshal's Notice, the court may allow you to stay if you have the past due rent and request an Order to Show Cause. This gives you an opportunity to explain to the judge that the rent can be paid if the court halts the eviction. There is no guarantee of this once the City Marshal is involved, but it is a possibility. An experienced Tenants' lawyer may be able to help you make a more persuasive argument. If you have defended yourself up to this point, it may be worth the legal fees to get professional help for this appearance.

Can someone sue for "stealing" a spouse?

While not permitted in New York for couples who legally marry here, several other jurisdictions have laws that allow spouses to sue individuals who disrupt their marriages. Usually, when one or more states pass legislation, there is an increased incidence of other jurisdictions adopting similar laws. If you were married outside New York, discuss it with your lawyer to determine if this may be a claim in your case. Similarly, if you are involved with someone who was originally married in another state and is now divorcing, you should check with a matrimonial attorney to see if "alienation of affection" may be a liability.

Cleanliness Counts: Claims of Filth & Vermin as a Defense

Under New York State law and the NYC Housing Maintenance Code, landlords are required to maintain premises in a clean and habitable manner. If your building is infested with roaches, flies, mosquitoes, mice, rats, or other vermin, is filthy, or has timely garbage disposal issues, the landlord is in violation of the law. If the premises suffer from these conditions and you are being evicted in a nonpayment proceeding, citing them constitutes a defense for withholding the rent. Be prepared to support your claims in court. Photos are effective evidence, especially of traps or extermination devices with dead insects, mice or rats. Have written records or copies of prior complaints. If you have children, mention it in your papers, as these conditions pose a potential health hazard to kids in particular.

What To Say When You Call The Cops

There are landlords who are extremely aggressive when it comes to evicting tenants, and sometimes cross the line of breaking the law. Illegal evictions are not uncommon, especially in smaller properties. By law, a landlord cannot evict a tenant without a court order. However, that doesn't stop abusive landlords from illegally changing or damaging the locks on apartments, mercilessly harassing tenants, cutting off heat, water or electrically, removing your property, or threatening violence.

It's Almost Never Smooth and Simple

If you're getting divorced, it's almost a forgone conclusion that you've had trouble communicating effectively with your spouse. It's also likely that in broaching the subject of divorce, you'll fall into the same pattern of interaction that characterizes your other conversations. That is, it's likely to end up in a fight, with bad feeling and animosity on both sides. Needless to say, this isn't the best way to approach the subject.

Challenge the Landlord's Cost of Improvement Claims

Unscrupulous landlords often attempt to jack up the base rent on a regulated apartment by making improvements at exaggerated cost before a new tenant moves in. By law, in buildings of 35 units or fewer, the landlord is entitled to add one-fortieth or 2 ½ % of the cost of improvements to the monthly rent. In larger properties, the limit is one-sixtieth of upgrade expenditures. Improvements can include new construction, enhancements, additional services, new appliances, equipment or other fixtures, plus installation expenses. Some landlords grossly inflate these costs. This constitutes illegal overcharging. If you suspect you've been overcharged, you may have to sue the landlord to correct your rent. To defend against this kind of abuse you have to require the landlord to produce all contracts, orders, and invoices, along with evidence of payment such as canceled checks and receipts. These documents are legally necessary to justify rent increases for individual apartment improvements, and you may need the help of a Tenants' attorney to obtain them. For many alterations, work permits and related government agency certificates are needed. These should be secured also. If you prove you've been overcharged, the landlord will have to adjust your rent to the lower amount and refund any excess you paid. The penalty for this violation may be triple the overcharge, plus reasonable attorneys fees.

Same-Sex Couples Divorce in NY, But Married Elsewhere

Even before the passage of legislation legalizing same-sex marriage in New York, it was not necessary for you to have married in this state in order to get divorced here. As long as a valid same-sex marriage was effectuated in a jurisdiction that allowed it, New York permitted a legal divorce. However, if you married elsewhere, but now live here with your partner and decide to part ways, you'll want to retain experienced New York matrimonial counsel. You'll be subject to the same requirements that are applied to heterosexual marriages here. These may be different from the jurisdiction where you married, although certain legal ramifications may be applicable from that state. This is true even if one of you decides to return there. 

What's it worth to protect your rights?

Tenants are often very concerned about the cost of retaining a lawyer when they have a problem with the landlord. If litigation is involved, and a tenant hasn't had to hire an attorney before, legal fees can seem to be expensive. It's true that going to court can be costly, yet investing in the right representation needs to viewed within a broader context. The larger and more important question is: What's the value of keeping your apartment? For example, if you live in a rent-regulated unit that is half the cost of the same space at free market rates, you have a very valuable asset at stake. It's unlikely you will find another rent-stabilized apartment if you lose the one you have. Let's say it would cost you an extra $1000 a month to replace the space you now have in a similar neighborhood. If you lose your apartment because you scrimp on your defense, and have to pay current market rates, then the very first year you've lost $12,000. In two years, it has cost you at least $24,000. Three years, $36,000...not to mention unregulated rent increases, or the costs of moving if the landlord doesn't renew your lease. You get the point - good legal representation from a competent Tenants' attorney can be well worth the fees you pay.

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